I argue that the theories of Randy Barnett, Jack Balkin, and Lawrence Solum represent a fundamental rejection of what originalism has been through much of its history and what it ought to be if it is to make a meaningful contribution to legal thought. The fact that originalists have by and large welcomed these three theorists into the originalism tent is therefore deeply troubling because the meaning of the word “originalism” has been stretched beyond recognition. There is now a crisis of indeterminacy within originalist scholarship. In this essay, I will attempt to recover the core concepts that comprise a sound originalist theory in order to reestablish the perimeter of originalism. I will argue that Barnett, Balkin, and Solum constitute a separate scholarly movement, what I call “post-originalism.” The paper has obvious implications for originalist theory, but it is equally important for nonoriginalists who require a clear conception of what originalism is in order to meaningfully engage its proponents in scholarly discourse. At its heart, then, the paper is an effort to reintroduce theoretical boundaries so that scholars do not talk past one another and so that originalism can continue to have influence in American law and politics.

This paper was written as a Senior Thesis at Princeton. Quite an impressive accomplishment. It is not just Justices Sotomayor and Kagan whose senior Princeton theses are worthy of examination.

11/29/2010

Nora Tillman and Seth Barrett Tillman (United States District Court, NJ) has posted A Fragment on Shall and May (American Journal of Legal History, Vol. 50, p. 453, 2010) on SSRN. Here is the abstract:

This short paper has some comments on the Constitution's use of the verbs "shall" and "may" (and "will"). We suggest that the American English of the founding generation was a more capacious language than its modern successor and that which came into being post-Noah Webster's first dictionary and grade school primer, A Grammatical Institute of the English Language, first published in 1783. As we explain more fully, where a word once had multiple meanings, but only one variant is now remembered and understood, we may be seriously mistaken when we ascribe near certainty to our understanding of how a constitutional term was used.

According to Professor Josh Chafetz, “impeachment maintains the link between removal and death, but attenuates it…Impeachment is…a political death - a President who is impeached and convicted is deprived of his continued existence as a political officeholder. And, like death, impeachment and conviction may be permanent.” In this short response, it is my purpose to show that Chafetz’s proposed metaphor does not work and, indeed, that inferences drawn from this metaphor lead Chafetz far afield from the Constitution’s original public meaning.

11/27/2010

A popular but damaging dichotomy is hindering citizens' ability to talk intelligently and constructively about the constitutional work of the courts. The "legitimacy dichotomy" holds that, when adjudicating constitutional disputes, judges either obey the sovereign people’s determinate constitutional instructions or illegitimately trump the sovereign people’s value judgments with their own. The legitimacy dichotomy leaves little or no room for the possibility that an array of conflicting interpretations of the Constitution might be reasonably available to a judge; it leaves little or no room, in other words, for judicial discretion. This article begins by examining the legitimacy dichotomy from three different vantage points: evidence which suggests that rhetorical invocations of the legitimacy dichotomy mask more complex beliefs about the role of judicial discretion in constitutional adjudication; Justice Kagan’s critique of the now-famous umpire analogy during her confirmation hearing in June 2010; and the debate between Justice Stevens and Justice Scalia in McDonald v. City of Chicago about the extent to which judges may properly exercise their discretion when adjudicating questions of substantive due process. The article then suggests that law schools are inadvertently encouraging at least some of their students to believe that judges’ discretion is almost entirely unconstrained and that judges often behave as democratically illegitimate actors. Finally, in an effort to provide law students and others with an understanding of constitutional adjudication and of constitutional change that is both descriptively accurate and democratically legitimate, the article draws connections between democratic constitutionalism and judicial discretion, and then offers metaphors for explaining that relationship.

This paper highlights some of the most salient and perhaps controversial implications of a natural law basis of human lawmaking. First, it requires the rejection of a libertarian presumption in favor of less government and lawmaking. Second, it grounds legal authority in political authority, which in turn is the body politic's responsibility and right to determine the contingent ways by which its members will do what the natural law allows or requires. Third, it entails that promulgated legislative intent, not text, is the locus of law. Textualism is ruled out because it is (in a technical sense) mindless: it mistakenly maintains that law can exist other than in minds. Fourth, such recognition requires ample opportunity and adequate mechanisms for law to be made by those who are in position to discern the concrete requirements of the good in particular circumstances. Administration is therefore central to law, not peripheral to or inconsistent with law. This paper was written as a response to Jean Porter's new book Ministers of the Law: A Natural Law Theory of Legal Authority.

David Fontana's piece is interesting, especially his claim that "the post-colonial constitutions of Africa[] and Latin America, for instance, foster many originalist arguments." Unfortunately, there is no cite here for me to explore. It would seem that there is an interesting article for someone to write.